Over the past few decades, landowners have tried to use the First, Fourth, and Fifth Amendments to fully privatize the upper, dry-sand part of the beach. If these efforts were to succeed, there would be a host of negative consequences, and not just for surfers. In most of the states in which beaches are economically important, including California, Florida, New Jersey and Texas, privatized dry sand would mean little to no public access at times when the public, wet-sand part of the beach is submerged, that is, in the hours immediately before and after high tides. Decreased beach use would severely impact businesses dependent on beach-goers and would force local governments to expend limited funds to purchase beaches.
This Article explores the possibility that courts and the public can put an end to the beach privatization movement simply by pointing to the common law of waterfront property. Historically, both courts and scholars have ignored the challenging title issues created by the common law and, in particular, by the rules governing boundary relocation after waves, currents, tides, and winds have changed the shape of the beach. These rules make it impossible to know the location of public-private beach boundaries in real time, that is, at the moment the landowner wishes to use the boundary to exclude others from her property. The consequence of real-time uncertainty is that, as a matter of law, landowners do not have an enforceable right to exclude. The absence of this property right not only undercuts constitutional claims premised on its existence, but also leads to the conclusion that the public has the right to use the entire beach.
The vanished right to exclude does, however, leave a vacuum. Because trespass rules are different for structures, a landowner could still use the law to keep people out of a beach house. However, if the beach is public, the landowner would be left without the ability to prevent uses, like raucous parties or truck races, that impinge on her ability to enjoy her home. In order to mitigate this problem, the Article concludes by recommending that courts or legislatures create a more stable exclusion line at the top of the beach, and grant each landowner the right to prevent unreasonable public use of adjacent beach areas.
Josh Eagle, Are Beach Boundaries Enforceable? Real-Time Locational Uncertainty and the Right to Exclude, 93 WASH. L. REV. 1181 (2018).